Challenge in this appeal is to the judgment and order dated 04.12.2009 passed by the then Additional Sessions Judge, Court No.14, Aligarh in S.T. No. 1009/2002, under section 302 IPC and S.T. No. 1010/2002, under section 25 Arms Act, P.S. Atrauli, District Aligarh, whereby the appellant had been found guilty for the offences aforesaid, sentencing him to undergo life imprisonment and two years rigorous imprisonment respectively. The sentences were directed to run concurrently.

2. Succinctly stated the facts of the case are that on 23.04.2002 at 00.30 A.M. Vittar Pal Singh s/o Kunwar Pal Singh, r/o Village Lohgarh, P.S. Atrauli, District Aligarh submitted a written report in P.S. Atrauli, wherein he stated that in the night of 22/23.04.2002 at about 10.30 P.M. his younger brother Pratap had gone to the house of Ram Bharose where Virendra, Pramod, Liyakat and others were also present. Virendra claimed that his Rs. 100/- had been lost which have been picked up by Pratap. Abuses were exchanged between them and Pratap came back home. Soon thereafter Virendra s/o Kamal Singh, r/o Lohgarh, P.S. Atrauli, District Aligarh came in front of the house of the complainant in search of Pratap hurling abuses at him. Staya Pal brother of Pratap, who was standing outside the house objected to it, whereupon he killed him by firing shot with country made pistol at about 11.00 P.M. The complainant further stated that they are engaged in small milk business and in the emergency light he, his brother Pratap and father have witnessed the incident. After firing shot Virendra made his escape good and the dead body is lying at the spot. On the basis of this report case at crime no. 347/2002 was registered under section 302 IPC against the accused-appellant, investigation whereof was entrusted to S.O. Gajendra Singh Rathi. He reached at the spot, interrogated the complainant, prepared site plan and inquest at 1.30 A.M. on 23.04.2002 and sent the dead body in sealed cover with usual papers for post mortem.

3. Dr. Pramod Kumar conducted autopsy on the cadaver of the deceased on 23.04.2002 at 3.30 P.M. He found that 32-years old deceased had average built body. Rigor mortis was present in both upper and lower limbs. He found the following ante mortem injuries on the person of the deceased:

"An entry wound of gun shot 1.0 cm x 1.0 cm x bone deep into right side of back. 15 cm below the top of right scapula at 7 O' clock position, breaking the right scapula lacerating the lower part of right lung and upper part of left lung and bullet also breaking the left second rib and collar bone. Bullet recovered in soft tissue ( muscle) of left shoulder joint anteriorly. Margins of entry wound are inverted, so direction of bullet is from posteriorly to interiorly upwards."

In internal examination the doctor found that left second rib, collar bone, both pleura and both lungs of the deceased were lacerated and about one litre blood was found in thoracic cavity. Right chamber of the heart was full and left was empty. In the opinion of the doctor deceased suffered death due to shock and haemorrhage as a result of ante mortem fire-arm injury about 3/4 day before. Investigation was later on transferred to SSI J. P. Bansla. On 01.05.2002, he interrogated the accused in jail with the permission of the court, who allegedly confessed his guilt and offered to get the country made pistol used in the crime recovered. Application for his police custody remand was filed by the Investigating Officer, which was allowed. On 07.05.2002 the accused during police custody remand got the country made pistol of 315 bore recovered at 3.45 P.M. which was loaded and recovery memo whereof was prepared by the police. On the basis of this recovery a case under section 25 Arms Act was registered against the accused on 07.05.2002, its investigation was entrusted to S.I. Devendra Singh. The investigation of both the cases culminated in charge sheet against the accused.

4. After committal